Government Legal Services Team: Huaicheng lawyer
Edit | July
作者 | 槐城律师 颜世鹏
Yan Shipeng
Liaoning Huaicheng Law Firm
Government Legal Services, Administrative Law Enforcement, Land Expropriation Compensation
1
The site selection of the investment project has not been approved
The company sued the management committee for compensation
In 2011, the Management Committee of Changbai Mountain Development Zone in Jilin Province made a meeting summary, promising to provide help and support for the investment promotion enterprise Changbai Mountain Runsen Company in handling preliminary procedures, entrusting environmental impact assessment, and striving for policy and financial support.
Subsequently, Runsen Company and the person in charge of Changbaishan Jiuding Commercial Concrete (Tong) Co., Ltd. (hereinafter referred to as Jiuding Company) signed an agreement on the investment of concrete concrete mixing plant, and the person in charge of Jiuding Company carried out the investment and construction in accordance with the agreement.
In 2014, Jiuding Company applied for environmental impact assessment procedures for the commercial concrete batching plant project, but was not approved because the original site did not meet the environmental protection requirements.
In 2017, the Housing and Urban-Rural Development Bureau of the Changbai Mountain Management Committee issued Changguan Jian Han [2017] No. 25 "Letter and Reply of the Housing and Urban-Rural Development Bureau of the Management Committee on the Remote Site Selection of Jiuding Commercial Concrete Batching Plant Project", which contains:
“...... The existing urban area can not select the qualified site selection site; Jiuding commercial concrete batching plant project is the investment promotion project when our district was just established, it is recommended that the commercial concrete station be temporarily selected to the open space of Baoma City, in order to ensure the normal production of the commercial concrete station; Jiuding commercial concrete station and Runsen heating project are both the remaining problems of the management committee, and the problem of Jiuding commercial concrete station should be dealt with at the same time when dealing with the problem of Runsen heating.
In April 2018, Jiuding Company filed an administrative lawsuit because it had not been able to re-select the location and could not continue its operation, requesting that the Chibei District Management Committee and the Changbai Mountain Management Committee be ordered to complete the preliminary procedures and site selection matters for it as soon as possible, and that appropriate monetary compensation should be given if the site could not be selected in another place.
2
The courts of first and second instance ruled against the Management Committee
Deal with the loss of the enterprise
(Click on the image to ask a lawyer)
After the first instance of the Intermediate People's Court of Yanbian Korean Autonomous Prefecture of Jilin Province and the second instance of the Jilin Provincial High People's Court, the court held that:
The investment promotion agreement involved in the case was an administrative agreement, and Jiuding Company carried out investment and construction in accordance with the agreement based on the administrative promise of the management committee.
Under the circumstance that the commercial concrete batching plant involved in the case does not meet the environmental protection requirements due to the original site selection and cannot produce normally, the Chibei District Management Committee and the Changbai Mountain Management Committee shall perform their obligations under the agreement and handle the preliminary procedures and site selection matters for Jiuding Company in a timely manner;
If it is indeed impossible to relocate the site in the jurisdiction due to objective reasons, and the project cannot be continued, the Chibei District Management Committee and the Changbai Mountain Management Committee shall deal with the relevant losses of Jiuding Company in accordance with the law.
3
Huaicheng lawyer suggested
In order to achieve public management functions or public service objectives, local governments and their functional departments reach investment promotion agreements with investment entities to grant a series of preferential policies, which are administrative agreements.
Local governments attract investment by providing preferential policies, and sign investment promotion agreements with investment promotion enterprises, agreeing to give certain preferential policies to enterprises.
For example, subsidies for infrastructure, incentives for local financial contributions, incentives for listing or scientific and technological innovation, etc., as long as the content of the agreement does not violate the policy and the mandatory provisions of laws and regulations, the content of the agreement is legal and valid and should be complied with.
However, in the actual process of promotion, due to changes in objective circumstances or policy adjustments, the relevant promises of the government cannot be fulfilled on time and as agreed, and disputes arise, just like the case we mentioned above.
Huaicheng lawyers have provided legal services for government agencies for more than 20 years, and one of the important tasks is to provide services for the government's investment promotion work. Including formulating preferential policies for investment promotion, drafting the text of investment promotion agreements, sorting out investment promotion service processes, and resolving investment disputes.
In the investment promotion disputes handled by Huaicheng lawyers, there were even claims of hundreds of millions of yuan, but in the end, under the mediation of lawyers, the conflict was successfully resolved.
When encountering similar problems, it is recommended to avoid intensifying the conflict first, regardless of whether the enterprise has filed a lawsuit or not, and the counterpart unit and the enterprise should first sit down and sort out the problem.
Second, on the basis of identifying the problem, research and formulate solutions, and solicit the opinions of relevant departments, experts, and intermediary service agencies, especially lawyers' opinions on the legality of the solutions.
After the plan is approved by the management committee or the government, it should be started and implemented as soon as possible to avoid delay, and if it has already entered the litigation procedure, a lawyer shall be entrusted to actively respond to the lawsuit; if it has not entered the litigation procedure, a settlement agreement shall be signed through negotiation and performance.
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